Rogers v. Tyley

Mr. Justice Wilkin delivered the opinion of the Court: The proof introduced on behalf of the petitioner clearly establishes the fact that the trust in said Vandervoort was correctly stated in the declaration signed by him, at the time of the execution of the deed. The recital in the Bay deed, to the effect that he held the title in trust for the benefit of Russell, Trabue and Rogers alone, was therefore untrue, and if the petitioner has succeeded in showing a valid title in himself with that erroneous recital corrected, the decree below is clearly right and must be affirmed. In support of the allegation in. the petition that the deed from said Vandervoort to Charles R. Bay was made in pursuanee of a sale by said Jason Rogers to the latter of his interest in said land, the petitioner introduced in evidence a letter of which the following is a literal copy. “ Morrisania, Sept. 9, 1863. Mrs. D. Rally, Madam. .Tours of the 7th is just received. Mr. Vandervoost purchased 80 acres of land from Mr. Fitzgerald one mile from the city of Chicago when we were in the west. I think he paid about $3080.00 for the 80 acres. I purchased one ⅛ of the above land for $375. I sold my interest in the land to Mr. Charles R. Day of Newark, or Orange, N. J., for $400. Mr. Yandervoost purchased no other land out west at that time. By addressing a letter to the clerk of county of Cook at Chicarco, Illinois, and he will send you full particulars. I think the land was purchased in September, 1855, any further information I will cheerfully give if required. Yours respectfully, Jason Rogers per Thos. Rogers. P. S. I do not know the value of the land at the present time. When he bought it was cheep.” This letter was produced by Germain Breant Vandervoort, a son of said Benjamin W. Vandervoort, who testified that he obtained it from Mrs. D. Bally, residing in Paris, France, who is his aunt. He testified: “ When I heard that Mr. Pope was going to commence this proceeding, I wrote to my aunt, who resides in Paris, France, asking her whether she had any papers or letters relating to this property of my father, and she sent me, in a short time afterwards, some letters of my father, and this letter which I hold in my hand. This letter is written to Mrs. D. Bally, who, on the death of my father, took out papers of guardianship in reference to my mother’s estate, and she wanted to know something about how my father’s estate stood. She wrote to a number of parties in reference to it, and this is a letter that she received in answer to a letter written to Mr. Rogers.” The only controverted question of fact in the record is the genuineness of this letter. Appellants insist it is a forgery. They introduced as a witness on their behalf Thomas Rogers, one of appellants, a son of Jason Rogers, and the Thomas Rogers who, it is admitted, wrote the letter if it is genuine, and by him attempt to prove that he did not write it. The testimony of the witness Vandervoort, as to how he obtained the letter, and how it came to be written, was not objected to, nor is there any evidence whatever, either in his cross-examination or otherwise, tending to discredit him in that regard, except the evidence of said Thomas Rogers, to the effect that he did not write the letter. Counsel for the appellee contend that the decree of the court below should be affirmed, without reference to this letter, on the ground that, by the facts proved in regard to the trust in Vandervoort in favor of Rogers, the latter’s interest in said eighty acres of land was not in the realty, but in the proceedthereof, as personalty. In support of this contention it is insisted the case is like that of Morrill v. Colehour, 82 Ill. 618, and the Nicoll dower cases reported in 29 id. 323; 37 id. 284; 70 id. 295, and 49 id. 358. We do not think this position tenable. The case made by the petition is wholly unlike the cases cited. The agreement under which it is alleged the purchase from Fitzsimmons was made, the declaration of trust by Vandervoort, and the agreement signed by Russell, Trabue and Rogers to pay their proportionate part of the purchase money, all show that the land was not purchased with partnership money for partnership purposes, or held by Vandervoort as such, but that each of the four parties paid a proportionate part of the purchase money, and were to have an undivided interest in the land to be conveyed to them by Vandervoort if they requested it. It may be, if Vandervoort had sold the entire purchase, Rogers, under the latter clause of the declaration of trust, could only have claimed one-eighth or one-quarter of the proceeds, but certainly, under that clause, the trustee had no power to divide the land and sell what he might consider one-eighth or one-quarter of it, and require Rogers to accept the proceeds in satisfaction of his interest in the whole tract. He could do that only with the consent of Rogers, the cestui que trust, and that is clearly the theory of this petition. The question then recurs, was the court below justified by the evidence in finding that the conveyance to Day was made at the instance and request of Jason Rogers ; and both parties concede that this question turns upon the genuineness of the Rally letter. Julian Watkins Vandervoort, another son of Benjamin W: Vandervoort, testified on behalf of the petitioner to a conversation with Thomas Rogers at the Palmer House in Chicago, after this suit was brought, and says, “ I asked Mr. Rogers if he recollected writing that letter. He said, ‘ Well, it is so many years back that it is too long for me to remember, but it is very likely. I may have written a letter, as at that time I was my father’s secretary, and wrote his letters.’ His father at that time was either in bad health or infirm.” He also says Mr. Rogers expressed a desire at that time to see the letter, and that he telegraphed his brother at Kansas City to bring it on to Chicago, but before the brother arrived, Rogers had left the city. We do not think it can be seriously questioned that the evidence on behalf of petitioner, prima facie, proves that Thomas Rogers wrote the letter. Testifying in his own behalf, in his examination in chief, he at no time positively denies that fact. When asked by his counsel, “ Did you, or did you not, sign that letter ‘ Jason Rogers, per Thos. Rogers ? ’ ” He answered, “I never signed a letter ‘Jason Rogers, per Thos. Rogers.’ ” Again, he says, “ I never signed my name Thos. Rogers, but Thomas Rogers.” To the interrogatory, “ Please look again at that signature, and say whether or not it is your signature,” he answers, “ I never remember signing my name Thos. Rogers.” To the direct question, “ Did you sign that letter marked Exhibit 9 ? ” he replied, “ To the best of my knowledge, I did not.” Manifestly, that which raises the belief in the mind of the witness, that he did not write the letter, is the fact, that his name is written Thos. instead of Thomas, as he was in the habit of writing it. He does not deny that the writing is similar to his. He does not say, from recollection, that he did not write letters, about that 'time, for his father. In another part of his evidence he admits that the writing is like his, and while he denies that he told the witness Vandervoort, that he was in the habit of writing letters for his father, or was his secretary, he admits that he may have written one or two letters for him, and does not say this may not be one of them. He was at his father’s house at Morrisania, the date of the letter. On cross-examination he gives, as an additional reason for the belief that he did not write the body of the letter, the misspelling of the word Chicago, and spelling it in different ways in the same letter. Nothing can justly be said against the fairness and candor of Mr. Rogers as a witness. His answers appear to be frank and candid, but it is clear, from the whole of his testimony, that he is in doubt as to whether or not he wrote this letter, and from certain features of it, not consistent with his habit, and what he now thinks he would have done had he written it, his belief is, that he did not write it. He was asked, on the cross-examination, to reproduce the letter in his handwriting by sentences, which he did. He also in his examination in chief produced two of his signatures, written about the date of the letter, which, he swears, are his genuine signature of that period, and which he took from books belonging to him, in which he had written his name, for the purpose of showing that they belonged to him. One Henry L. Tolman was introduced by the petitioner as a microscopical expert, and testified that, in his opinion, the signature of Thomas Rogers to his deposition filed in the case, and the signature, Thos. Rogers, to the Rally letter, were written by one and the same person. Also that the letter and the reproduction of it, on cross-examination, were written by one and the same person. He also gave it as his opinion that the two signatures taken from books by Mr. Rogers, were not written by the same person who signed the deposition and reproduced the letter, though he says there is some resemblance in the writing. He gives his reasons at length for the opinion that the letter and signature were written by the same hand which signed the deposition, and re-wrote the letter, and some of them, at least, give force to that opinion. The original “ Rally letter” by agreement of parties is attached to the record for our inspection. Also the two book signatures above referred to. The letter itself has all the appearances of having been written about the time of its date. We are unable to discover anything in it calculated to cast suspicion upon its genuineness. It is said Rogers would not have used the names Vandervoort and Fitzgerald, for Vandervoort and Fitzsimmons. It may be replied, neither would one forging such a letter. There are certainly many features of resemblance between the handwriting in the letter, and the reproduction of it by Mr. Rogers. The marked difference between the book signatures, and that to the “ Bally letter,” and to the reproduced sentences of it is, that those taken from the books are much smoother, and seemingly done with a better trained hand. In other words, those taken from the books are by far the better written. This difference can be accounted for, in part at least, by the fact that they were in all probability written with more care. However that may be, we are of the opinion that the weight of the evidence is in favor of the finding of the Circuit Court as to the genuineness of that letter. There is no force in the objection that the Vandervoorts were incompetent to testify against appellants on account of interest. Even if it had appeared that they were interested in the event of the suit, they testified to no fact occurring prior to the death of Jason Rogers, and as to subsequent events and transactions they were clearly competent. It is also objected that the expert testimony of the witness Tolman was incompetent. Singularly, this objection is based in part upon the declaration of counsel, that “ the similarity between the writing in the Bally letter, and Mr. Rogers’ mature handwriting, shown by the reproduction, is so marked that it simply needed a person not blind to notice it.” Therefore it is said “ the rule that, where men of ordinary intelligence can judge, expert testimony will not be received,” should have been applied. Citing Pennsylvania Co. v. Conlan, 101 Ill. 93, and similar cases. It was held in the Pennsylvania Co. case that, “ as to matters which do not so far partake of the nature of a science as to require a course of previous habit, or study, in order to an attainment of a knowledge of them, the opinions of witnesses, though experts, are not admissible.” Certainly that rule has no application when the genuineness of writings and signatures is in issue. Whether two instruments were written by the same person, or whether signatures are the same is clearly the subject of expert testimony. It will not be pretended that appellants would not have had the right to offer expert ’ testimony to prove that, notwithstanding the similarity of the writings, they were written by different hands. The question to Tolman was not whether the two writings resembled each other, but whether, in his opinion, the same person wrote both. But, it is said, admitting his testimony, over the objection of appellants, was violative of the rule, “ that the genuineness of handwriting can not be proved or disproved by comparison.” The general rule in this and other States of the Union is doubtless as above stated, but wherever that rule prevails, there is also the exception, that if the instrument to be used as a standard is properly in evidence in the case, for other purposes, then the signature, or paper in question, may be compared with it by the jury. To this effect is Brobston v. Cahill, 64 Ill. 356. Where other writings, admitted to be genuine, are already in the case, comparison may be made by the jury, with or without the aid of experts. 1 Greenleaf on Ev., sec. 578. We do not deem it important to inquire how far the laches of Jason Rogers and his representatives, the appellants, should estop them from now claiming title to the premises in question. The fact that he, during his lifetime, made no claim to the premises, and left his executors in ignorance of any claim of title thereto, so that, until the filing of this petition, they were wholly ignorant of the fact that he ever owned it, are circumstances strongly corroborative of the statements made in the "Rally letter.” / The further point is suggested that the sale could only be made by Vandervoort, so as to bind Jason Rogers, by the written consent of the latter, and, therefore, the decree below is erroneous, there being no proof of such written consent. ¡No authority is cited in support of the proposition, and we find none. We know of no reason why his consent might not be shown by circumstances or parol proof, as well as by writing. The statute of frauds has no application to the case. If, as stated in the Rally letter, Jason Rogers sold his interest in the trust property to Day, to whom the proof shows the trustee conveyed, it would be most unreasonable and unjust to allow him or his executors to now repudiate that sale and conveyance because his consent was not given in a particular manner. It is also insisted the court below erred in adjudging all the' costs against appellants. It is contended, first, that there is no authority of law for taxing costs against a defendant in such a proceeding. That a proceeding under the “ Burnt Records act ” to establish title is a proceeding in chancery, is settled by the decisions of this court. Gage v. DuPuy, 127 Ill. 216; Same v. Same, 134 id. 132. By section 18, ch. 33, R. S., entitled “ Costs,” it is provided that in all cases in chancery, not otherwise directed by law, except where the bill is dismissed by the complainant, or for want of prosecution, it shall be in the discretion of the court to award costs or not.” The awarding of costs in a court of chancery is a matter of discretion with the court. Frisby et al. v. Ballance et al., 4 Scam. 287. It is also well settled that the exercise of that discretion will not be reviewed, except for abuse. The litigation in this case was caused by the appellants interposing a claim to the premises in question, which the court below deemed to be unfounded, and as we have seen, that decree was justified by the evidence. It can not, therefore, be seriously contended that the court below abused its discretionary power in ordering them to pay the costs. It is again insisted that under section 20 of the “ Burnt Records act,” the court should have limited the costs to “ two-thirds of the ordinary costs at law.” This is a clear misapprehension of the scope of that section. It does not make it the duty of the court to limit the costs, but simply fixes the maximum fees which “ officers and employees ” may charge, or be allowed for services rendered in proceedings under that act. If costs have been taxed in violation of the section, the remedy of appellants is by motion in the court below to retax the same. We find no reversible error in this record, and the decree of the Circuit Court will be affirmed. Decree affirmed.